§ 4.27    Conducting a Reality Check

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Do not forget, as Beaman once said, to "include brains among the materials used." Middleton Beaman, "Bill Drafting," 7 Law Library Journal 64, 69 (1914).

Simply put, things sometimes look good on paper but do not work in practice. Give the policy a reality check.

Consider, with a skeptical eye, whether the policy can be given practical and legal effect. A policy that sounds good but doesn’t work can embarrass your client and cause problems down the road.

A law may be legally sufficient but nonetheless be ineffective as a practical matter; the law may be difficult to administer or enforce, or it may not adequately cover possible contingencies, or it may not provide adequate consequences for a failure to comply. In short, it may not fit reality.

A practical concern with the policy is whether it is workable. This is not a question of whether it is a good idea or a bad idea--that is a policy question for the client to decide--but whether it is a well-formed idea that responds to the problem in an attainable way.

There is no easy process for figuring out if a policy is workable. You need to hold a brainstorming session. Ponder the policy from as many angles as you can. If you had to administer it, does it provide enough guidance? If you had to comply with it, can you tell what is, and is not, allowed?

In the ordinary case, does everything seem to be in order? Does it do what is needed to meet the objective? Does it refrain from doing anything else? Does it lead to any absurd results? What sort of effect will it have on institutions? People? Society? Does it rely on assumptions that may not be valid now, or may not hold in the future?

And so much for the ordinary case. Does it still work adequately in an extraordinary, but possible, case?

The essential purpose of the reality check is to give your statute, in a very short period of time, the sort of scrutiny that a common-law rule receives over generations of cases.

The virtue of a statute is that it can make major changes to the law quickly and responsively. The virtue of common law, on the other hand, is that it has been tested over time, through the trials and errors and lessons of a great many cases, and represents a sort of received wisdom.

Common law is tested, but it is not quick and responsive. Statutes are quick and responsive, but they are not always tested. This is where you, as a drafter, come in. Simulate the common-law process. Imagine people and events and contingencies that might cause problems. Find out if the law still works; find out where the gaps, the uncertainties, and the contradictions are.

The reward is in the result. Though a statute is born untested and new, it should work as if tested and old. (Unfortunately, as Judge Dean quipped, "Laws seem to be born full-grown about as often as men are." Waters v. Wolf, 162 Pa. 153, 167 (1894).).